01/08/2019

As most readers of this blog will have seen, President Trump said on Friday that he was considering declaring a national emergency to build a wall on the southern border, despite congressional refusal to fund such a wall. On Sunday, the White House chief of staff confirmed the story, telling CNN’s Jake Tapper that the administration is well along in the planning stages of using presidential emergency powers to accomplish what Congress will not allow. Today, Trump’s emergency proposal is the lead story in the news.

The truth is that the White House’s emergency gambit reveals the full extent of Congress’s dangerous delegation of emergency powers to the executive branch of the federal government. Elizabeth Goitein of the Brennan Center has collected a daunting list of statutes authorizing emergency powers, which is super helpful on this point. (Liza summarizes the statutes in a recent article at The Atlantic.) The upshot? Declaring a national emergency to build the president’s ridiculous wall would be a national embarrassment. It ought to be unlawful, too. But whether declaring a national emergency to build a wall actually is unlawful under current circumstances turns out to be much closer question than it should be. The key statutory provisions are 10 U.S.C. 2808 (authorizing emergency reallocation of certain military construction funds) and 33 U.S.C. 2293 (authorizing emergency reallocation of certain civil works project funds).

I’ll leave the analysis of these heretofore obscure statutes to others, since readers here are better positioned to do it than I am. But as it happens I have a book out this spring from Yale Press on a theory of emergency power, based on a lost manuscript by political theorist, jurist, and Lincoln Administration insider Francis Lieber. Historian Will Smiley and I found the manuscript in the National Archives and Yale Press is publishing an annotated edition of it, along with a long introduction by Will and me. Not surprisingly, I think a bit of history from what is still the U.S.’s biggest constitutional emergency may help us see what has happened. ...

In my view the analysis is relatively straightforward and mostly in lines with that suggested by Professor Witt. The Constitution does not provide the President with emergency powers. The President has the constitutional powers he has, and may deal with situations (emergency or non-emergency) as they arise, using those powers. One presidential power is command of the military, through the commander-in-chief clause. So the President can direct the military to build fortifications, including presumably a wall on the southern border (subject to private property rights and federal statutes that may limit construction). But the President cannot spend money on construction of the wall unless it has been approved by Congress under the appropriations clause. Ordinarily that would mean the President would need to get Congress' approval for construction (in an emergency situation or otherwise). But, as Professor Witt notes, Congress has delegated enormous power to the President by authorizing spending in general terms. Constitutional restrictions on delegation are probably even weaker here than in other areas, so these statutes are likely constitutional. And if they give the President power to redirect funds as the President chooses to respond to emergencies (as the President defines them), that would seem to give the President the power he needs. As in many areas, the problem is likely not presidential overreach but congressional over-delegation.

UPDATE: Robert Chesney (Texas) has a helpful "primer" on the matter at Lawfare, which confirms my intuition that this is a statutory issue not a constitutional issue.